Gideon Sitelu Konchella & another v Attorney General & 5 others [2018] KEELC 2481 (KLR)
The bottom line
#The court dismissed a landowner's constitutional challenge because the same land dispute had already been decided in earlier lawsuits.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition is res judicata
The Petition is res judicata as its issues were heard and determined in Nairobi HCCC No. 627 of 1998 and HCCC No. 102 of 2002
Two suits over the same suit lands between the same parties or their privies were heard and determined by courts of competent jurisdiction. The 1st Petitioner's application for leave to appeal was dismissed, HCCC No. 102 of 2002 was dismissed for want of prosecution, and the 1st Petitioner even paid the outstanding decretal balance after the auction proceeds were factored in. Raising the same issues by petition is an affront to res judicata.
Whether the Petitioners' right to own property under Article 40 was violated
No violation; the claims are private-law matters governed by the Land Control Act, Registered Land Act (Repealed) and Banking Act, and remedies lay in a damages claim under section 90 of the Land Act, not a constitutional petition
The loan procurement and statutory power of sale were litigated and determined in the two prior High Court suits. The mortgagee adhered to due process, the purchasers were buyers for value without notice who had subdivided the land with new titles, and the Petitioners had remedies in private law. The Petition is an attempt to recloth an old claim to vex the respondents.
Whether the Respondents' conduct violated the Constitution
No violation; the Petitioners failed to identify with precision which rights each Respondent infringed, and the 3rd Respondent followed due process before exercising its statutory power of sale
Applying Anarita Karimi Njeri, the Petitioners did not plead the alleged infringements with the required precision. The loan defaulted, the chargee exercised its statutory power of sale after judgment, and the dispute was determined by a competent court. The 4th Respondents' property rights as purchasers for value cannot be interfered with.
Legal principles established
#- A court may not try a suit or issue that was directly and substantially in issue in a former suit between the same parties, heard and finally decided by a competent court (res judicata)
- A petitioner alleging constitutional violation must state and identify the rights infringed with precision and how they were infringed (Anarita Karimi Njeri rule)
- A consent judgment can only be set aside in the same cause and upon proof of fraud, coercion or misrepresentation
Court orders
#- 1.The Amended Petition dated 29th October 2012 and filed on 30th October 2012 is dismissed
- 2.Costs of the Petition to the Respondents
- Jurisdiction invoked
- Constitutional petition under Articles 22(1), 23(1), 40 and 157 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gideon Sitelu Konchella & another v Attorney General & 5 others [2018] KEELC 2481 (KLR)", Case Analysis (2018). Constitutional Petition arising from Amended Petition dated 29th October 2012 (Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2481/eng@2018-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.